Congressional Efforts to Modify the Endangered Species Act

By Zachary Sheldon

Posted on August 4, 2015

Image Credit: USFWS, Southwest Region

Over the past five years, legislation introduced by Congress regarding the Endangered Species Act (ESA) has increased by 600%. Revising the 40-year-old ESA has become a priority for Chairman Rob Bishop (R-UT) and Ranking Member Raúl Grijalva (D-AZ) of the House Natural Resources Committee, who both intend to propose bills updating the act.

The Endangered Species Litigation Reasonableness Act (H.R. 2109) was introduced by Representative Bill Huizenga (R-MI) and referred to the House Natural Resource Committee on April 29. The legislation would alter the court’s ability to award financial reimbursement for the costs of litigation brought forth through the ESA. As it currently stands, courts may award reimbursement to both defendants and plaintiffs in any amount which the court determines as appropriate. The bill would instead have courts only issue reimbursements to the prevailing party. The bill would also cap the reimbursement amount for attorney fees at $125 per hour to be consistent with the Equal Access to Justice Act.

Congressman Huizenga stated when he first introduced the bill in 2014 (H.R. 4318) that “[i]n times of tight fiscal budgets and escalating national debt, taxpayer dollars should be prioritized for the protection and recovery of species. The Endangered Species Litigation Reasonableness Act makes the ESA consistent with current law by placing a $125 cap on the hourly rate of taxpayer-funded fees that may be awarded to attorneys that prevail in ESA cases. This bill makes government more efficient and more effective, by helping focus ESA resources towards species protection and recovery instead of filling the pockets of lawyers.”

Defenders of Wildlife staunchly opposed the bill when it was originally introduced. Defenders claimed the bill sought to prevent citizens from enforcing the ESA on government and industry projects by restricting their ability to recover their litigation costs when they prevailed in court. Defenders asserted the reimbursement cap would make it difficult for citizens to retain counsel as that cap fell below market rates for attorneys.

The Endangered Species Act Settlement Reform Act was introduced by Senator John Cornyn (R-TX) with the goal of giving states and other affected parties a voice in settlement processes regarding ESA listing decisions. The bill requires the Secretary of the Interior to provide notice of a proposed settlement to each state and county in which a species involved in the settlement is found. Each state and county must then approve the settlement for it to proceed.

s. 293 would also modify which parties the court may award costs of litigation. Courts would only be able to award reimbursement to defendants after a settlement. If the settlement is a “consent decree”, where neither party admits liability, then both the plaintiff and the defendant would not receive reimbursement.

A consortium of petroleum industry members wrote a letter to Senator Cornyn supporting S. 293. The letter states the bill will improve the framework of the ESA by increasing transparency and accountability during settlement negotiations. They suggest that the bill would allow the Fish and Wildlife Service to properly prioritize their work without being entangled in litigation that forces them to be driven by arbitrary deadlines

The Center for Biological Diversity opposes the bill, saying in a press release that the bill limits the ability of the Fish and Wildlife Service to settle cases by allowing state governments to intervene. By changing the judicial rules on which parties can intervene in lawsuits, the Center asserts the Department of Justice will be unable to settle unwinnable cases and force them to waste taxpayer resources in litigation. They suggest the resulting slowdown from litigation will cause species to be in limbo as they wait for final listing decisions.

S. 293 was referred to the Senate Committee on Environment and Public Works on January 28.

Other ESA-related Legislation

Other bills being considered cover a wide variety of topics, including requiring the Secretary of the Interior to publish online all the scientific and commercial data used as the basis for regulation; requiring the FWS to consider any data submitted by a state, tribal, or county government as the “best scientific and commercial data available”; and requiring the Secretary to consider the cumulative economic effects of listing a species and preventing listing if the effect is too great.

These bills have not garnered as much visible support as the previously mentioned bills but are currently being considered by committees in Congress.

TWS and the ESA

In 2005 TWS published a technical review of the ESA, in which solutions to improve the effectiveness of the ESA were identified, and issued its official position statement on the ESA in 2011. TWS has previously opposed Congressional provisions and amendments that aim to legislate the listing and delisting of species, such as riders in the House’s Fiscal Year 2016 National Defense Authorization Act that mandates a ten year delay in a listing decision for the greater sage-grouse.